Trigger warning: this newsletter assumes readers are of sufficient maturity to understand and not be wounded by cultural references to cocaine, Starsky & Hutch, and physical money made out of paper. Also: these events happened a long time ago. My recollection is imperfect, and I have definitely changed and embellished the narrative to make it a good story.
Dirty banknotes
She don’t lieShe don’t lieShe don’t lieCocaine.J. J. Cale, Cocaine
There is an urban myth that every bank note in circulation has traces of cocaine on it. Except, it isn’t an urban myth: it’s a fact. I know it is a fact because about 15 years ago I sat on a jury in Wood Green and listen to a police forensic expert have to admit it under cross-examination during a criminal trial.
The trial concerned a gentleman from Tottenham who, the Crown alleged, had been dealing drugs. He did this, according to the indictment, from a car parked in a secluded side street off the North Circular.
The case rested on three items found in the defendant’s possession: a wallet stuffed with cash, a set of portable electronic scales and, as I recall it, 79 individually wrapped “rocks” of crack cocaine.
It seemed open-and-shut. The Crown called a police forensic scientist to give technical evidence about the cash.
Firstly, there was a lot of it. A little over £5,000: a good deal more than you might expect a gentleman of the defendant’s prospects to be carrying around North London at three in the morning. Secondly, it was generously dusted, the witness said, theatrically clearing his throat,
With a substance that mass-spectrometry revealed to be a mixture of sodium bicarbonate and methyl-3-benzoyloxy-8-methyl-8-azabicyclo-octane-2-carboxylate —
At this the witness paused, for dramatic effect. The judge looked non-plussed. The jury waited for the punchline. He gave it, triumphantly:
Which is commonly known as crack cocaine.
Every single note was, in his telling, caked with the stuff. We of the jury were resolute. This witness was clearly an expect. He had used reliable scientific tests. He was convincing. There was little doubt what he said was true.
But then the defence barrister stood up. His cross-examination ran along the following lines.
Defence: In your professional experience, Mr. Henhouse, would you say it is common for banknotes to be contaminated with cocaine?
Witness: It is not unheard of.
Defence: But is it common?
Witness: I suppose you could say it’s common, yes. I don’t know.
Defence: Roughly how common?
Witness: Ooh I wouldn’t like to guess.
Defence: No, I dare say. But indulge me. What proportion of banknotes are contaminated with cocaine?
Witness: Well, A fair proportion, certainly.
Defence: What counts as “a fair proportion”?
Witness: A lot, I suppose.
Defence: It’s all of them isn’t it?
Witness: I don’t know. Look, I haven’t check every banknote in circulation, have I?
Defence: Of course you haven’t. Of course not. But how many have you checked, over your [theatrically checks notes] twenty-seven-year career as a forensic expert? Ten thousand? A hundred thousand? A million?
Witness: I should say tens of thousands, yes.
Defence: And in those tens of thousands, have you found one used bill that didn’t carry traces of cocaine?
Witness: (Mumbles inaudibly)
Defence: I’m sorry, Mr. Henhouse, I couldn’t hear you.
Witness: No.
Defence: No further questions, m’lud.
It was beautiful.
How banknotes get cocaine on them
Now, I’m sure none of my regulars readers will know this, but banknotes are sometimes used to snort cocaine. (Those who do know this presumably found it out, as I did, watching Starsky & Hutch in the 1970s). This is how they get cocaine on them.
Not every banknote in circulation has been used to snort cocaine. Nothing like it Rather, cocaine is fine, rather adhesive stuff. It gets everywhere. It tends to rub off on anything it touches. Such as nearby bank notes. Since even law-abiding citizens tend to keep their banknotes together, in a wallet, a contaminated note has plenty of opportunities to rub against innocent ones.
Law-abiding citizens also have a habit of passing banknotes around. The will just give them away, to perfect strangers, in a way they won’t, so readily, with their other possessions. A large part of the JC is devoted to why and how humans do this, and what it all means: we need not dwell on it here.
In any case, one encoked banknote is likely to come into contact with, and infect, many “innocent” ones over its lifetime. This means many law-abiding citizens — basically all of them, according to this police scientist who had sworn upon a bible — regularly carry cash contaminated with a classy recreational drug. [Shouldn’t that be, “Class A recreational drug”?— Ed].
Electronic scales of justice
That was one piece of evidence presented — if reluctantly — in the trial. Another was that British drug dealers weigh and package their product using unremarkable consumer durables: digital kitchen scales. These scales, so said the witness, are plenty accurate enough to prepare and apportion crack for retail distribution.
I was quite pleased to hear this. It speaks to attention to detail and a commitment to quality control I would not have expected in the criminal class. It is laudable in its way. Plus, those digital scales are neat. We have some in our kitchen. We keep them in a draw with the used chequebooks, spaghetti, dried up felt-tip pens, mysterious keys, broken utensils and ant poison.
When the police apprehended the defendant, in his car, parked under a tree beyond the throw of the nearest street lamp, they found some Salter electric scales in his glove compartment. These they bagged up, labelled and presented to the court as “Exhibit A”.
In the manner of a conjurer gulling an unwitting accomplice, the prosecutor bade a court official pass the scales, in their bag to the jury for inspection. I was surprised, and rather pleased, to see it was exactly the model we have the Contrarian household’s keys, pens, spaghetti and ant poison drawer.
The final exhibit — which the court official did not hand over for inspection, for some reason: we were invited to regard it from afar — was 79 individually wrapped “rocks” of crack cocaine.
The same police analyst explained what a “rock” is (one tenth of a gram of cocaine mixed with baking soda), and that its street value was about £2,000. The arresting constable had already testified that he found these in the defendant’s jeans pocket. This was before the era of always-on bodycams, but the defence did not dispute it.
These were the uncomfortable circumstantial facts that the defendant’s barrister had to deal with: how to explain what his client was doing in a parked car in a secluded spot, in possession of five large in cash, a set of digital scales and enough cocaine to entertain most of Crouch End for a fortnight, if he wasn’t planning to sell it to people.
To be sure, the facts were all circumstantial: no one saw this fellow supplying anyone with any drugs. It required inference. But, as the prosecutor would suggest in his closing submissions, it was not a hard one to draw.
Then began the case for the defence.
The defence case
The defendant turned out to have a rather ingenious barrister.[1] His strategy was threefold.
Firstly, with the unwitting assistance of the police’s own expert, he established that coke-contaminated bank notes are not in themselves evidence of anything. Even the police conceded that, as far as anyone knows, every bank note is coke-contaminated.
Secondly, he made a complex submission that, while possession of large sums of money or large quantities of crack invited, to some degree, an inference that their holder for the time being was a drug dealer, having both at once did not: one is tendered in exchange for the other, after all. While the possession of both money and drugs no doubt invited some adverse insinuations about the defendant’s character, that he was supplying drugs to customers on a commercial basis — the offence for which he had been charged — was not one of them.
There are obvious flaws in this reasoning — we in the jury saw them at once — but they flummoxed the poor prosecutor, who looked quite blindsided by this submission and was unable to make anything of it.
The defence’s last zinger came in cross-examination. It was a master class in the ancient art. Once again, the victim was the same benighted forensic scientist, brought out, so he thought, to establish uncontroversial scientific facts about cocaine and banknotes, and who was already having a miserable day, which got worse when, against his expectation, the cross-examination turned to the kitchen scales.
It went like this:
Defence: The device recovered from the defendant’s car is a set of ordinary kitchen scales?
Witness: Yes, I believe that is right.
Defence: Salter ‘ARC’ electronic scales.
Witness: I’ll take your word for it.
Defence: These are ordinary kitchen scales — the sort of thing that anyone might own. Even members of the jury?
Witness: (Observing several jurors nodding vigorously) Yes, I dare say.
Defence: But they are also commonly used for measuring up quantities of crack?
Witness: (Brightly) Yes. Yes I believe that is very common.
Defence: Where do drug dealers usually measure up and package their supplies of crack?
Witness: Well, I have no idea, as you can appreciate.
Defence: But if you had to guess? Would they do that, do you think, somewhere private, secure, well lit, perhaps with clean hard surfaces? A controlled environment?
Witness: Yes, I suppose so.
Defence: Like a car parked in dark street?
Witness: Well, I couldn’t rightly say —
Defence: If you were a drug dealer, would you prepare crack in a car parked up just off the North Circular?
Witness: Well, no —
Defence: No you wouldn’t, would you? That would be absurd. I mean, just imagine it. Coke would go everywhere! Disaster!
Witness: Yes, it probably would be quite messy.
Defence: Yes! Quite messy! And as you have told us, cocaine is powdery stuff that gets everywhere, sticks to everything it comes in contact with?
Witness: Yes.
Defence: And detecting small quantities of cocaine in the lab is a cinch?
Witness: Yes, that is right.
Defence: And you say the defendant was there, measuring out rocks of crack with these scales, in the dark, on his lap, in the driver’s seat of his Cortina, at three in the morning, in Bounds Green?
Witness: Well, I didn’t say th—
Defence: Did you find any traces of crack on the scales?
Witness: What?
Defence: I said, did you find any traces of crack on the scales, Mr. Henhouse?
Witness: Well, no —
Defence: Did you even test the scales, with all your sophisticated forensic equipment? Did you even look for any of this easy-to-find crack cocaine?
Witness: No.
Defence: My lord, I have no further questions.
It was spectacular theatre. The jury was riveted. And in each of our minds we posed exactly the questions the defence barrister wanted us to, and in our minds we answered them exactly how he wanted them answered, without having to put the questions to the witness at all.
The time for closing submissions arrived. As a group we had little interest in what the prosecution had to say. The Crown’s case was obvious. It barely needed closing submissions at all. But we were fascinated to hear from the defence barrister.
He did not disappoint.
His first submission was that cocaine-contaminated banknotes meant precisely nothing. He suggested that each of us was carrying cocaine contaminated banknotes as he spoke.
Then he turned to the kitchen scales. The Crown had conceded, he noted, that a drug dealer had no reason to have kitchen scales in his car. It was singularly preposterous to think he might be measuring out crack on the kerbside. Nor had anyone even asked the defendant what he was doing with a set of kitchen scales. It did not come up in cross-examination. By any measure the scales, he said, were irrelevant. One could not draw any inference about the defendant’s possession of an ordinary consumer durable.
The crux of this long but, I hope, entertaining story arrived a bit later that afternoon when we sat down in the jury room to deliberate.
I have done jury service twice in my life. It is a fascinating experience: I recommend it to anyone, just as an opportunity to witness how communities form and operate. Out of, perhaps, a surfeit of caution, I have excised any discussion of what went on within the walls — so far as I can even remember it — but the discussion is just as effective in the hypothetical. What follows is hypothetical.
The first few moments of a jury’s formal deliberation are critical. A social hierarchy must form, from nothing, on the spot: twelve complete strangers are locked in a room and assigned a grave task. They do not know one another. They have no history. They are blank slates. Their skills, weaknesses and proclivities are unknown. They are, in every sense, equals. There is no organising principle. But this state of equanimity dissolves almost immediately. There are extraverts and introverts. There are logicians and feelers. Judgers and perceivers.
Quickly this disparate group self-organises into a social unit with a clear hierarchy. You can imagine a person starting off the discussion like so —
I have no doubt he’s guilty, but I don’t think the police has proven it.
Quickly, others might join in:
Yeah, I mean bang to rights — five grand street value of crack? How is that guy not a drug dealer? But the police were really useless.
I would have felt the same way. You could see how, where the perceived social ill is quotidian, people could be incentivised to “send the police a message”: there is form and there is substance, and it is one thing to prefer form over substance, but if you can’t be competent to at least get the form right, you should not be subjecting people to the criminal justice system.
In my story — and to be clear, again, it is a story, loosely based on dim recollections, and designed to illustrate a psychological point — there are plenty of nods and winks to a fundamental fact: on the whole, Londoners are not that bothered about the supply of illegal drugs. Many quite like it. For all I know some of the jurors may have been casual drug users — even enthusiastic ones. Wood Green is not far, as the crow flies, from Crouch End. But the law is the law, and juries generally understand their duties well enough.
Now the reason I mention all of this is that this liberal disposition to give a defendant the benefit of doubt — even unreasonable doubt — is more likely to happen in some cases than others.
There are times, like this, where a jury will positively seek excuses to acquit a defendant. Here the prosecution must not only have a rock solid case that really is, in fact, justified, but they must follow every procedural step to the letter. Any slips, formal or substantive, and they will fail. This is where the charges brought are, technically, against the law, but the jury has limited sympathy for the law. There are many laws on the books that have limited public support. Sunday trading laws, for example.
Appalling vistas
Our fathers claimed, by obvious madness movedA man’s innocence, until his guilt is provedThey would have known, had they not been confused —He’s innocent until he is accused.
—Ogden Nash, Period Period
But there are other times where the opposite happens: some law reflect deeply-held community values. Murder, for example. The murder of the vulnerable by those in positions of trust. I have a theory that murder laws do nothing to change the murder rate: those of us who refrain from murder do not do so because there is a law against it. It is a deeply held moral conviction that the law simply reflects. Would that all laws did this.
Where acts alleged are deeply repellent to their personal values, no jury will acquit “just to send the police a message”. In fact — so the academic literature tells us, and it resonates as common sense — quite the opposite. When allegations are monstrous, the jury’s nervousness will be about acquitting, not convicting. The jury will be fearful of unwittingly letting an actually guilty defendant go free.
A 2018 study[2] in Nature’s Human Behaviour imprint revealed just this bias in mock jurors when asked to consider hypothetical crimes of different severity. The more heinous the crime, the more likely subjects were to be convinced by the same amount of evidence.
This correlation applied across all participant groups, but was much greater for mock jurors than for prosecutors and other legal professionals. This suggests that emotional and moral reactions to the severity of allegations may unconsciously lower the evidentiary threshold jurors apply when determining guilt.
Better the odd innocenti gets banged up than a single monster goes free.
This is a jury’s equivalent of Lord Denning’s notorious “appalling vista” rationalisation in dismissing the appeals of the actually innocent “Birmingham Six”.
If the six men win, it will mean that the police are guilty of perjury, that they are guilty of violence and threats, that the confessions were invented and improperly admitted in evidence and the convictions were erroneous ... This is such an appalling vista that every sensible person in the land would say that it cannot be right that these actions should go any further.
The jury will have felt the same. Terrorism is repellent: not morally so much as personally. Even terrorists have their causes, but we have a selfish interest in their being safely behind bars, and in the agency that put them there being uncorrupt, nonviolent, expert and excellent at identifying and apprehending the right villains and if not that, then at least basically competent. We want to believe that such an agency would not charge the wrong people, inadvertently or wilfully. To acquit such a defendant is to suppose, in the best case, that government agencies are catastrophically failing. And that is if the acquittal is correct. To falsely acquit is to believe murderous terrorists over the upstanding agencies of the state. Who takes that risk? Where does that leave us? Lord Denning was right: this is an appalling vista. He was only wrong in stating we should therefore close our eyes to it. He was very, very wrong about that.
But, by comparison, terrorism is an easy case. Where the allegations are morally repugnant — where a jury of citizens is protecting not its own selfish interests but rather guarding the vulnerable from the wickedness of those to whom their welfare is entrusted, our instincts are emotional and the logic is even stronger. If what is alleged is truly horrendous, the victim defenceless, the idea of acquitting a defendant whom we think may be guilty is repellent.
If we believe a defendant is guilty, but are not “sure” the law of the land says we must acquit. We might, enthusiastically, for a gentleman caught in a Cortina in Bounds Green with a wad of contaminated bills — but would we for an alleged child murderer?
See also
Playlist
Well — it couldn’t really be anything else, could it?
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